1. In the Notice of Motion dated 19th December, 2023 the Applicant prayed for the following orders:
1) THAT this application be and is hereby certified urgent and that the same be heard Ex-parte in the first instance.
2) THAT this honourable Court be pleased to grant the Applicant herein leave to apply for the Judicial Review order of Certiorari to call and bring to this Court for the purposes of being quashed the Respondent\'s decision made on 14th of July 2021 for the appointment of a liquidator.
3) THAT this Honorable Court be pleased to grant leave to the Applicant to apply for an order of Mandamus compelling the Respondent to reinstate the Applicant and to allow it to continue with its operations to enable it conclude on the cases pending in Court and to further enable them fold their operations in the normal way after all its objectives are achieved.
4) THAT pending the hearing and determination of this application, this Honorable Court be pleased to issue a Conservatory Order of stay staying the decision of the Respondent made by way of a Gazette Notice dated 14th July 2021 to enable them to continue defending and/or prosecuting the ongoing cases in Court.
5) THAT the cost of this application be provided for.
2. In response, the Respondent filed a Notice of preliminary Objection on the following GROUNDS:
a. THAT the application offends the mandatory provisions of the law in respect to the time limitation under section 9(3) of the Law Reform Act in that; \"In case of an application for an order of certiorari to remove any judgement, order. Decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree\"
b. THAT the application as drawn and filed grossly violates the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 in that \'Leave shall not be granted to apply for an order of certiorari to remove any judgement, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act.
c. THAT the Application offends the Doctrine of Exhaustion as provided for under section 9(2) and (4) of Fair Administrative Actions Act that:
(2) The High Court or a subordinate court under Sub section (I) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.
d. THAT the application is therefore fatally defective and incompetent in both form and substance and an abuse of the court process.
The Exparte Applicant’s case;
3. It is its case that The Respondent’s Notice of Motion of Preliminary Objection singularly touches on the writ of certiorari and further relies on section 9(3) of the Law Reform Act.
4. The Preliminary Objection does not in any way address the writ of mandamus which also is sought.
5. Reliance is placed in the case of Margaret Njeri Gitau Vs Julius Mburu Gitau & 2 Others (2022} eKLR the court stated:
“The Court will also take into account that the Preliminary Objection must stem from the pleadings and raises pure points of law and should not deal with disputed facts nor derive its foundation from factual information\"
In the case of Oraro.....IVs......Mbaja {2005} eKLR the courtheld:\"Anything that purports to be a Preliminary Objection must not deal with the disputed facts and it must not derive its foundation from factual information which stands to be tested by the rules of evidence.\"
6. The applicant’s grievance is that they were caught completely unaware as they were never called at any one time to defend themselves as envisaged under the Fair Administrative of Action Act.
In Dry Associates Ltd V. Capital Markets Authority and Another [2012] eKLR the Court observed;
“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realms of Common Law or Judicial Review under the Law Reform Act (Cap 26 of the Laws of Kenya) but is to be measured against the standards established by the constitution.
\"[21] The occasion to hear this mater accords us an opportunity to make certain observations regarding the recourse by the litigants to preliminary objections. The true Preliminary Objection serves two purpose of merit; firstly, it serves as a shield for the originator of the objection-against profligate deployment of time and other resources. And secondly, it serves the public course, of sparing scarce judicial time, so it may be;
i) Every person has a right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
ii) Every person has the right to be given written reasons for any administrative action that is taken against him.
iii)When an administrative action is likely to adversely affect the rights of fundamental freedoms of any person, the administrator shall give the persons affected by the decision: -
a) Prior and adequate notice of the nature and reasons for the proposed administrative action;
b) An opportunity to be heard and to make representations in that regard.
c) Notice of a right to a review or internal appeal against an administrative decision, where applicable......\"
7. It is its case that the importance of this right to fair administrative action as a constitutional right in Article 47 cannot be over emphasized.
8. The Court of Appeal Stated in the case of Judicial Service Commission Vs. Mbalu Mutava & Another (2014) eKLR that:
\"Article 47(1) makes an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the bill of rights. The right to fair administrative action is a reflection of some of the National values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subject to Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
9. In the case of Independence Electoral & Boundaries Commission Vs. Jane Cheperenger & 2 others {2015) the Supreme Court explained as follows regarding Preliminary Objection.
“committed only to deserving cases of dispute of settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially and on merit”.
10. The Exparte Applicant prays that this Honourable Court finds that the Preliminary Objection as unmerited and dismiss the same with costs.
The Respondent’s case;
a) Whether the Court has jurisdiction to hear and grant Judicial Review orders for certiorari brought out of time.
11. Application for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed. The Applicant’s Statutory Statement dated 16th November 2023 is the subject matter of these proceedings based on the decision rendered on 14th July 2021. The Applicant should have instituted Judicial Review proceedings not later than 15th January 2022.
12. Order 53 Rule 2 of the Civil Procedure Rules stipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months, the said rule;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
13. In the case of NYAGAH Vs REPUBLIC (1990) eKLR 291, Bosire J. (as he then was) said;
“Section 9 (3) of the Law Reform Act has a total prohibition to the granting of leave after the expiration of a 6 months’ duration, after the order or decree or judgment under attack. The provision is conclusive. Had it been the intention of the legislature to confer on the Court the power to enlarge the time specified for bringing an application for leave, it would have said so or made provision under Section 9 (1) of the Law Reform Act, for the making of the rules in that regard.”
14. Additionally, the Court of Appeal noted as follows in the case of Wilson Osolo V John Ojiambo Ochola & Another (1999) EKLR;
“It can readily be seen that Order 53 Rule 2 (as it then stood) is derived verbatim from Section 9(3) of the Law Reform Act. Whilst the time limited for doing something under the civil Procedure Rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute, in this case, the Law Reform Act”
15. We submit that the issue of limitation of time is a point of law which goes to the root of the matter. Leave to apply for Certiorari is so fundamental that without it, this court cannot hear and determine the prayer for certiorari.
16. As was held in Owners of Motion Vessel ‘Lilian ‘S’ V Caltex Oil (K) Ltd [1989] KLR 1
“…… jurisdiction is everything, without which a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
b) Whether this suit offends the doctrine of exhaustion
17. The fair administrative Action Act under Section 9 provides for the procedure of Judicial Review and states as follows under Sub Section 2 and 4;
“9. Procedure for Judicial Review
(2) The High court or a subordinate court under Sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice”.
18. From the above provisions of the law, the High Court cannot review administrative decisions unless the applicants have exhausted all remedies available under any written law – including internal mechanisms of review and appeal. The Respondents rely on the case of Republic versus Kenya Revenue Authority Ex parte Style Industries Limited [2019] eKLR where the court clearly explained the provisions of Section 9 (2) and (3) of the FAAA and stated as follows;
“A proper construction of Section 9(2) and (3) of the FAA Act leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by Section 9(4) which provides that; -
“Notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above subsection. First, the applicant must demonstrate “exceptional circumstances”.
“The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the Law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of successful application under Section 9(4) of the FAA Act.
19. It is our humble submission that the ex-parte applicants have not in any way demonstrated the exceptional circumstances as provided by the law under Section 9(4) of the Fair Administrative Action Act.
20. The doctrine of exhaustion was felicitously stated by the Court of Appeal in Speaker of National Assembly versus Karume, a pre- 2010 decision in the following words: -
“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament that would be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”
Conclusion
21. The Judicial Review Application is incompetent as the same was filed out of time and as such this court lacks jurisdiction and it is our submission that the same should be expunged from the court record. It is our submission that judicial review remedies being exceptional in nature should not be made available to indolent who sleep on their rights. When such people wake up they should be advised to invoke other jurisdictions and not judicial review.
22. Leave to apply for an order of Certiorari should not be granted unless the application for leave is made inside 6 months after the date of the decision being challenged as held in Republic v Council of Legal Education & another ex parte Sabiha Kassamia & another [2018] eKLR.
23. They pray that the Preliminary Objection dated 18th December, 2023 be allowed as prayed.
Analysis and determination;
24. Upon perusing the Preliminary Objection, pleadings and the rival submissions of parties alongside the authorities cited, this court finds the following to be the issues for determination:
c) Whether or not this court has Jurisdiction to hear and determine this suit.
25. The issue of whether or not the Court will uphold or dismiss the Respondents notice of preliminary objection is guided by the case of Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd 1969 E.A. 696,
“.............A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of land which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
26. In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court\'s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which Is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law.\" (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel \'Lillian S\' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: -
\"[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel \'Lillian S\' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.\"(underlining supplied)
[30] The Lillian \'S\' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.\"
The application as drawn and filed grossly violates the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 in that \'Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act.
Section 9(3) of the Law Reform Act provides that in “In case of an application for an order of certiorari to remove any judgement, order, decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree”
27. It is my finding that this court lacks jurisdiction to determine the issue whether or not the applicant is entitled to the order of certiorari or not given that the suit was filed way after the expiry of six months from the date of the cause of action arose and I so hold.
28. The applicant has also sought an order on Mandamus. Order 53 does not limit the timeline within which application for Mandamus should be instituted. However, this Court has gone deeper into the analysis of whether or not it has jurisdiction as tested within the doctrine of exhaustion parameters.
29. Section 9(2) and (4) of Fair Administrative Actions Act Which stipulates that:
(2) The High Court or a subordinate court under Sub section (I) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.
30. In the case of Clifford Keya v Jackline Inguitiah & 5 others; Atieno Aoko & 3 others (Interested Party) [2022] eKLR
The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.
The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.
The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.
31. In Jamlick Muriithi Mwenda v Law Society of Kenya & 10 others [2022] eKLR it was stated that the doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidance which doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justifiability. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR observed thus: -
“The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as: “The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held: The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
32. On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms:
In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
33. The same was also reiterated in the case of Clifford Keya V Jackline Inguitiah, Anna Konuche, Christine Kipsang, Attorney General, The Law Society of Kenya & Independent Electoral And Boundaries Commission; Atieno Aoko, Jane Nyaboke, Julie Soweto & LSK Elections Board (Interested Party) [2022] eKLR.
Council of County Governors v Attorney General & 12 others [2018] eKLR
“Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”
34. It is this court finding, and I so old that the applicant did not exhaust all that available for the distress including the cooperative society act.
35. The applicant has not filed any application nor has it secured an order exempting it from the application of the section 9 of the administrative action act.
36. As such applicant is caught up by the doctrine of exhaustion that takes away the jurisdiction of the court.
37. In arriving at my findings herein, this court is also guided by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] wherein it was observed that,
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
Order;
1) The Notice of Preliminary objection is upheld.
2) This suit is struck out.
1) THAT this application be and is hereby certified urgent and that the same be heard Ex-parte in the first instance.
2) THAT this honourable Court be pleased to grant the Applicant herein leave to apply for the Judicial Review order of Certiorari to call and bring to this Court for the purposes of being quashed the Respondent\'s decision made on 14th of July 2021 for the appointment of a liquidator.
3) THAT this Honorable Court be pleased to grant leave to the Applicant to apply for an order of Mandamus compelling the Respondent to reinstate the Applicant and to allow it to continue with its operations to enable it conclude on the cases pending in Court and to further enable them fold their operations in the normal way after all its objectives are achieved.
4) THAT pending the hearing and determination of this application, this Honorable Court be pleased to issue a Conservatory Order of stay staying the decision of the Respondent made by way of a Gazette Notice dated 14th July 2021 to enable them to continue defending and/or prosecuting the ongoing cases in Court.
5) THAT the cost of this application be provided for.
2. In response, the Respondent filed a Notice of preliminary Objection on the following GROUNDS:
a. THAT the application offends the mandatory provisions of the law in respect to the time limitation under section 9(3) of the Law Reform Act in that; \"In case of an application for an order of certiorari to remove any judgement, order. Decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree\"
b. THAT the application as drawn and filed grossly violates the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 in that \'Leave shall not be granted to apply for an order of certiorari to remove any judgement, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act.
c. THAT the Application offends the Doctrine of Exhaustion as provided for under section 9(2) and (4) of Fair Administrative Actions Act that:
(2) The High Court or a subordinate court under Sub section (I) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.
d. THAT the application is therefore fatally defective and incompetent in both form and substance and an abuse of the court process.
The Exparte Applicant’s case;
3. It is its case that The Respondent’s Notice of Motion of Preliminary Objection singularly touches on the writ of certiorari and further relies on section 9(3) of the Law Reform Act.
4. The Preliminary Objection does not in any way address the writ of mandamus which also is sought.
5. Reliance is placed in the case of Margaret Njeri Gitau Vs Julius Mburu Gitau & 2 Others (2022} eKLR the court stated:
“The Court will also take into account that the Preliminary Objection must stem from the pleadings and raises pure points of law and should not deal with disputed facts nor derive its foundation from factual information\"
In the case of Oraro.....IVs......Mbaja {2005} eKLR the courtheld:\"Anything that purports to be a Preliminary Objection must not deal with the disputed facts and it must not derive its foundation from factual information which stands to be tested by the rules of evidence.\"
6. The applicant’s grievance is that they were caught completely unaware as they were never called at any one time to defend themselves as envisaged under the Fair Administrative of Action Act.
In Dry Associates Ltd V. Capital Markets Authority and Another [2012] eKLR the Court observed;
“Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances is no longer left to the realms of Common Law or Judicial Review under the Law Reform Act (Cap 26 of the Laws of Kenya) but is to be measured against the standards established by the constitution.
\"[21] The occasion to hear this mater accords us an opportunity to make certain observations regarding the recourse by the litigants to preliminary objections. The true Preliminary Objection serves two purpose of merit; firstly, it serves as a shield for the originator of the objection-against profligate deployment of time and other resources. And secondly, it serves the public course, of sparing scarce judicial time, so it may be;
i) Every person has a right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
ii) Every person has the right to be given written reasons for any administrative action that is taken against him.
iii)When an administrative action is likely to adversely affect the rights of fundamental freedoms of any person, the administrator shall give the persons affected by the decision: -
a) Prior and adequate notice of the nature and reasons for the proposed administrative action;
b) An opportunity to be heard and to make representations in that regard.
c) Notice of a right to a review or internal appeal against an administrative decision, where applicable......\"
7. It is its case that the importance of this right to fair administrative action as a constitutional right in Article 47 cannot be over emphasized.
8. The Court of Appeal Stated in the case of Judicial Service Commission Vs. Mbalu Mutava & Another (2014) eKLR that:
\"Article 47(1) makes an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the bill of rights. The right to fair administrative action is a reflection of some of the National values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subject to Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”
9. In the case of Independence Electoral & Boundaries Commission Vs. Jane Cheperenger & 2 others {2015) the Supreme Court explained as follows regarding Preliminary Objection.
“committed only to deserving cases of dispute of settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially and on merit”.
10. The Exparte Applicant prays that this Honourable Court finds that the Preliminary Objection as unmerited and dismiss the same with costs.
The Respondent’s case;
a) Whether the Court has jurisdiction to hear and grant Judicial Review orders for certiorari brought out of time.
11. Application for leave to institute proceedings for certiorari ought to be made within 6 months from the date of the decision which the Applicant desires to have quashed. The Applicant’s Statutory Statement dated 16th November 2023 is the subject matter of these proceedings based on the decision rendered on 14th July 2021. The Applicant should have instituted Judicial Review proceedings not later than 15th January 2022.
12. Order 53 Rule 2 of the Civil Procedure Rules stipulates that applications for Judicial Review Orders such as of Certiorari have to be brought within the period of 6 months, the said rule;
“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”
13. In the case of NYAGAH Vs REPUBLIC (1990) eKLR 291, Bosire J. (as he then was) said;
“Section 9 (3) of the Law Reform Act has a total prohibition to the granting of leave after the expiration of a 6 months’ duration, after the order or decree or judgment under attack. The provision is conclusive. Had it been the intention of the legislature to confer on the Court the power to enlarge the time specified for bringing an application for leave, it would have said so or made provision under Section 9 (1) of the Law Reform Act, for the making of the rules in that regard.”
14. Additionally, the Court of Appeal noted as follows in the case of Wilson Osolo V John Ojiambo Ochola & Another (1999) EKLR;
“It can readily be seen that Order 53 Rule 2 (as it then stood) is derived verbatim from Section 9(3) of the Law Reform Act. Whilst the time limited for doing something under the civil Procedure Rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute, in this case, the Law Reform Act”
15. We submit that the issue of limitation of time is a point of law which goes to the root of the matter. Leave to apply for Certiorari is so fundamental that without it, this court cannot hear and determine the prayer for certiorari.
16. As was held in Owners of Motion Vessel ‘Lilian ‘S’ V Caltex Oil (K) Ltd [1989] KLR 1
“…… jurisdiction is everything, without which a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
b) Whether this suit offends the doctrine of exhaustion
17. The fair administrative Action Act under Section 9 provides for the procedure of Judicial Review and states as follows under Sub Section 2 and 4;
“9. Procedure for Judicial Review
(2) The High court or a subordinate court under Sub section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice”.
18. From the above provisions of the law, the High Court cannot review administrative decisions unless the applicants have exhausted all remedies available under any written law – including internal mechanisms of review and appeal. The Respondents rely on the case of Republic versus Kenya Revenue Authority Ex parte Style Industries Limited [2019] eKLR where the court clearly explained the provisions of Section 9 (2) and (3) of the FAAA and stated as follows;
“A proper construction of Section 9(2) and (3) of the FAA Act leads to the conclusion that they are couched in mandatory terms. The only way out is the exception provided by Section 9(4) which provides that; -
“Notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. Two requirements flow from the above subsection. First, the applicant must demonstrate “exceptional circumstances”.
“The second requirement is that on application by the applicant, the court may grant an exemption. My reading of the Law is that it is compulsory for the aggrieved party in all cases to exhaust the relevant internal remedies before approaching a court for review, unless exempted from doing so by way of successful application under Section 9(4) of the FAA Act.
19. It is our humble submission that the ex-parte applicants have not in any way demonstrated the exceptional circumstances as provided by the law under Section 9(4) of the Fair Administrative Action Act.
20. The doctrine of exhaustion was felicitously stated by the Court of Appeal in Speaker of National Assembly versus Karume, a pre- 2010 decision in the following words: -
“Where there is a clear procedure for redress of any particular grievance prescribed by the constitution or an Act of Parliament that would be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”
Conclusion
21. The Judicial Review Application is incompetent as the same was filed out of time and as such this court lacks jurisdiction and it is our submission that the same should be expunged from the court record. It is our submission that judicial review remedies being exceptional in nature should not be made available to indolent who sleep on their rights. When such people wake up they should be advised to invoke other jurisdictions and not judicial review.
22. Leave to apply for an order of Certiorari should not be granted unless the application for leave is made inside 6 months after the date of the decision being challenged as held in Republic v Council of Legal Education & another ex parte Sabiha Kassamia & another [2018] eKLR.
23. They pray that the Preliminary Objection dated 18th December, 2023 be allowed as prayed.
Analysis and determination;
24. Upon perusing the Preliminary Objection, pleadings and the rival submissions of parties alongside the authorities cited, this court finds the following to be the issues for determination:
c) Whether or not this court has Jurisdiction to hear and determine this suit.
25. The issue of whether or not the Court will uphold or dismiss the Respondents notice of preliminary objection is guided by the case of Mukhisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd 1969 E.A. 696,
“.............A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of land which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
26. In Samuel Kamau Macharia & Another v. Kenya commercial Bank & 2 Others, Application No. 2 of 2011 [2012] eKLR, the supreme court pronounced itself on jurisdiction thus [paragraph 68]:
“(68) A Court\'s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which Is conferred upon it by law. We agree with counsel for the first and second Jurisdiction to entertain a matter before it, is not one of mere procedural Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, Commission (Applicant), Constitutional Application Number 2 of 2011. Where they cannot expand its jurisdiction must operate within the constitutional limits. It confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, court or tribunal by statute law.\" (Emphasis provided) where it quoted with approval the oft cited case of Owners of Motor Vessel \'Lillian S\' v Caltex In Re The Matter of the Interim Independent Electoral Commission where the Court stated: -
\"[29] Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel \'Lillian S\' v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):
“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.\"(underlining supplied)
[30] The Lillian \'S\' case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.\"
The application as drawn and filed grossly violates the provisions of Order 53 Rule 2 of the Civil Procedure Rules, 2010 in that \'Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such a shorter time period as may be prescribed by the Act.
Section 9(3) of the Law Reform Act provides that in “In case of an application for an order of certiorari to remove any judgement, order, decree, conviction or any other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgement, order, decree”
27. It is my finding that this court lacks jurisdiction to determine the issue whether or not the applicant is entitled to the order of certiorari or not given that the suit was filed way after the expiry of six months from the date of the cause of action arose and I so hold.
28. The applicant has also sought an order on Mandamus. Order 53 does not limit the timeline within which application for Mandamus should be instituted. However, this Court has gone deeper into the analysis of whether or not it has jurisdiction as tested within the doctrine of exhaustion parameters.
29. Section 9(2) and (4) of Fair Administrative Actions Act Which stipulates that:
(2) The High Court or a subordinate court under Sub section (I) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.
30. In the case of Clifford Keya v Jackline Inguitiah & 5 others; Atieno Aoko & 3 others (Interested Party) [2022] eKLR
The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable.
The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution.
The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.
31. In Jamlick Muriithi Mwenda v Law Society of Kenya & 10 others [2022] eKLR it was stated that the doctrine of exhaustion appears to be closely intertwined with the doctrine of constitutional avoidance which doctrine is also referred to as the constitutional avoidance rule. The doctrine is part of the wider doctrine of non-justifiability. Speaking to the doctrine of constitutional avoidance, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR observed thus: -
“The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as: “The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.”
The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others Pet. 14A, 14B & 14C of 2014 of [2014] eKLR held: The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”
32. On the applicability of the doctrine of exhaustion in Kenya, suffice to say that the doctrine traces its origin from Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution in the following terms:
In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-
(c) Alternative forms of dispute resolution including resolution, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause 3.
33. The same was also reiterated in the case of Clifford Keya V Jackline Inguitiah, Anna Konuche, Christine Kipsang, Attorney General, The Law Society of Kenya & Independent Electoral And Boundaries Commission; Atieno Aoko, Jane Nyaboke, Julie Soweto & LSK Elections Board (Interested Party) [2022] eKLR.
Council of County Governors v Attorney General & 12 others [2018] eKLR
“Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”
34. It is this court finding, and I so old that the applicant did not exhaust all that available for the distress including the cooperative society act.
35. The applicant has not filed any application nor has it secured an order exempting it from the application of the section 9 of the administrative action act.
36. As such applicant is caught up by the doctrine of exhaustion that takes away the jurisdiction of the court.
37. In arriving at my findings herein, this court is also guided by the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] wherein it was observed that,
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
Order;
1) The Notice of Preliminary objection is upheld.
2) This suit is struck out.